Miltenberg: “As New Title IX Regulations Loom, Pushback Grows From Multiple Sides”, Dispatch

6.3.22

In June 2021, the Department of Education’s Office of Civil Rights announced that Title IX prohibitions on sex-based discrimination would be extended to include discrimination based on both sexual orientation and gender identity. 

But as the new regulations are expected to drop sometime this month, a growing coalition of ideologically diverse groups is forming to push back against this change, citing concerns over due process in Title IX sexual abuse investigations and worries about protecting women’s rights.

Lawmakers in the House and the Senate are pushing for a clarification on the definition of biological sex, as members of both houses of Congress allege that redefining sex disenfranchises women in traditionally gender-segregated spaces, from prisons to athletics. Both Senate Resolution 644 and House Resolution 1136 (spearheaded respectively by Sen. Cindy Hyde-Smith of Mississippi and Arizona Rep. Debbie Lesko, both Republicans) assert that “for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth,” and that “for purposes of Federal law addressing sex, the terms ‘woman’ and ‘girl’ refer to human females, and the terms ‘man’ and ‘boy’ refer to human males.”

Yet Miltenberg isn’t optimistic about the forthcoming regulations. “Pulling back from the advances that the Trump administration made in regards to Title IX policy and protocol (including allowing an accused student’s advisor to cross-examine parties and witnesses) is a dangerous issue,” he said. “It’s not a gender issue. It’s easy to throw a lot of smoke and make that the issue.”

Miltenberg says that the Trump-era regulations created a framework that made handling Title IX issues easier and more understandable. “The regulations that DeVos put in place leveled the playing field so that Title IX processes at campuses were equitable and transparent and led everyone to confidence in the process that led to that outcome.” Before the DeVos regulations, the lack of evidence and consistent due process during sexual assault investigations didn’t inspire confidence in the integrity of the legal system: “The majority of [Title IX] cases don’t have any direct evidence; in the vast majority of cases, everyone thought the result was ridiculous. There was no sense of any method. That apparent lack of framework is very disconcerting to people whose life and education and career are on the line here.”

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